TARGET 8: Advocates, attorneys call Nixon's pardons "low hanging fruit"

7 months 4 weeks 22 hours ago Wednesday, December 21 2016 Dec 21, 2016 Wednesday, December 21, 2016 8:58:00 PM CST December 21, 2016 in Target 8
By: Zack Newman, KOMU 8 Reporter
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COLUMBIA – Jeff Mizanskey carefully positioned a Styrofoam and plastic brick into place along the foundation of a home he was helping build for a friend.

“I just like to work with my hands,” Mizanskey said.

He spoke excitedly about the future as he pointed to the house’s specifications. It would eventually overlook a nearby lake, and he could envision warm afternoons spent fishing and socializing.

“That’s a million dollar view,” Mizanskey said.

For most of a 21-year-long sentence, Mizanskey said it was difficult to picture a future that did not include a prison. He was serving time without the possibility of parole for persistent drug offenses. Lawmakers considered the policy to be too harsh, and it will be replaced in January.

Mizansky considers himself lucky.

“I’m very fortunate, for real, because I was slated to die in prison for marijuana,” he said. “To be out here, in civilization again, with family and friends – it’s fantastic. If he [Nixon] would have never signed the papers, I would never be out here.”

Who’s getting clemency?

While Gov. Jay Nixon commuted, or reduced, Mizanskey’s sentence to include the possibility of parole, Mizanskey is an exception. He was one of 79 instances of clemency that Nixon has granted throughout his eight years in office. An investigation from the KOMU Target 8 team revealed that of those 79 instances, 76 people were already out of prison.

Some advocates and attorneys say there's a concerning trend for lame duck leaders to grant clemency as their terms wrap up.

Nixon granted only 17 clemencies before this year. For 2016, the number stands at 62.

Governor Jay Nixon’s Instances of Clemency by Year: 

 

Attorney Anne Geraghty-Rathert is on the board of directors for the Women Initiate Legal Lifelines for Other Women (WILLOW) Project at Webster University and represents three women seeking clemency. She said the instances granted thus far amount to clearing people’s records.

“Yes, these are important, but they are low hanging fruit in the sense that the lower level offense is people who are out of prison already, had probation to begin with as their sentence,” she said. “Certainly not the magnitude of of the injustice that has occurred for our clients.”

Scott Holste, a spokesman for Nixon, said clemency is a power the governor takes “very seriously.” Holste declined to make Nixon available for comment on this story.

“Pardons are not frequently given, but when they are issued we want to make sure that it's someone where the pardon is merited, and it's someone who's turned his or her life around,” he said.

Nixon has granted the highest number of clemencies compared to other Missouri governors in the past 30 years, according to figures from the Secretary of State’s Archives. The Target 8 team logged every pardon during those years and compared those to each governor’s dates in office. An email from the Reference Staff at the archives department explained that, after 1986, all degrees of clemency were logged as “pardons” even if they were technically commutations.

 

 
Approximately 70 percent of Nixon’s clemency cases dealt with those who were sentenced to probation, with no prison time. Two of them were death row inmates whose sentences were reduced, and 19 percent faced some degree of time behind bars.

Jennifer Bukowsky, an attorney in Columbia specializing in criminal defense and expungement, said such post-prison pardons are important to those receiving them, but should not be the sole focus of the governor.

“I hope that they give the prisoners a serious look too,” Bukowsky said. “Not just people who are out of prison. Those are the ones who are really suffering. The deprivation of all of their rights. Not just their gun rights, but their right to liberty.”

Clemencies by category of original sentence

 

Holste said clemency for those still in prison requires more scrutiny.

"There's certainly a higher bar when someone who is currently incarcerated asks for clemency from the governor,” he said.  ”Because that is not something to take lightly at all, to commute someone is incarcerated and has not yet completed their sentence.” 

Mizanskey viewed the pattern in a completely different way.

“The committee that’s working now evidentially is working for people that are already out,” he said. “So when you get put in prison, you just get left behind? It’s like they’re there, and we just pay to keep them there?” 

Those who are picked have proven themselves as beneficial to the community, Holste said, and have “led exemplary lives” since their convictions.

In some cases, the governor granted clemency to perpetrators of seemingly small crimes. Recipients stole a saddle or loose change. Others passed bad checks or had misdemeanor marijuana possessions. Holste said the clemencies should not be discounted.

“These are people who have, for their own personal reasons, have made applications to obtain a pardon so they will no longer have that issue hanging over them,” Holste said.  “It's one where we take a close look at what they've done with their life since that time. In each of these cases where a pardon has been issued, they've demonstrated that they merit one.” 

Target 8’s analysis of news releases from Nixon’s office found most of people who were granted clemency committed their respective crimes decades earlier. Many went on to school, careers, retired or moved out of state since they broke the law and before they were pardoned.

Doris Atchison's story

Doris Atchison is representative of the majority of cases picked for clemency. The news release announcing her pardon said she had been convicted of “misdemeanor stealing of items valued at $1.46 from a local store.” Atchison said it was an eyeliner pencil. She said she stole the makeup when she was 16; she applied for clemency 48 years later to restore a clean record.

“I was hanging with this girl that I probably shouldn't have been,” Atchison said. “I ain't blaming it all on her but she had stole stuff before, and she said 'C'mon, try it.' I said 'No, I'll get in trouble because my mom will beat me to death if she caught me doing something like that.' Well, finally, I decided to try it, and that's probably how I got caught. Because I know I had to look guilty.”

For the nearly 50 years since, she didn’t know the charge was still on her record. She found out when she tried to get a job helping elderly people in their homes. She said the job itself wasn’t as significant as the fact that she had a permanent mark on her record.

“To me, when I leave this world, I don't want something like that on my conscience,” she said. “Now I feel that if when I get ready to go, I can go in peace.”

Atchison said it sparked years of calling and “bugging” people to get her case heard by the right people. She said she vividly remembers the moment she heard she was pardoned.

“When I got the papers saying I was off, there was about a thousand pounds lifted off of my shoulders. And I said 'woohoo' and I'm a do a little dance," she said. "I was tickled to death.”

The Bottleneck

The bottleneck of people applying for a clean record or to be released is compounded by expungement regulations. Because certain crimes can’t be wiped off a record by a judge through expungement, for some people, asking the governor for help is the only way to clear their record.

Missouri revised statute 610.140 states Missourians guilty of a number of crimes, such as Atchison's theft, are not eligible to apply for expungement. This was reinforced by Missouri legislators in a bill that will take effect in 2018. Other examples of crimes that are not applicable are child abuse, endangering a mental health employee and incest.

In Missouri, those convicted of a felony can’t own a gun, vote, or hold public office. Geraghty-Rathert said convictions can impact lives by being a potential issue when trying to apply for a job or get public assistance.

Former Gov. Bob Holden said each application is evaluated by the individual’s merits.

“The governor will be very cautious in their review, and the staff will be very cautious in their review,” Holden said. “He’ll see which ones merit clemency.”

A shadowy procedure

It’s difficult to know who has applied for clemency and been rejected. Despite multiple public records requests, the only information available about those who have been granted clemency is through news releases from the governor’s office.

The single-page application is submitted to the Board of Probation and Parole. There are seven members of the governor-appointed board. Approved cases are forwarded to the general counsel at the governor’s office. They are then reviewed and picked by the governor. An overview of the process is available online.

The majority of the information about each case is protected by Missouri state law sections 217.670 and 549.500. RSMo. 217.670 allows meetings to be closed, and 549.500 restricts document access to employees or members of the Board of Probation and Parole.

Target 8 wanted to speak to a member of the board.

I have extended your request to the members of the Parole Board, and they have declined to be interviewed,” David Owen, Missouri Department of Corrections communications director, said in an email. “The department has no further comment.”

While a department brochure said it’s “not necessary” to have legal counsel represent people applying for clemency, Geraghty-Rathert said it can make a difference.

“This is just pro bono work that lawyers are doing because they believe the cause is just,” she said. “But I'm sure there are other people whose clemency are just as important and significant and who are equally deserving, but they don't have an attorney because they don't know anyone or they weren't able to get through a process to to find someone.”

As she began gathering materials to defend her clients, Geraghty-Rathert had to ask around for guidance on how to approach these cases. She is concerned that her clients could be lost in the backlog.

She has been working with students at Webster University to get support for clemency for her clients. They have been trying to free two clients for the past two years and another for the past six years. Her three clients were convicted of crimes including murder, kidnapping and assault. Geraghty-Rathert said circumstances like sexual abuse and false testimony wrongly led to time in prison.

“Sometimes I wish I would lose hope,” Geraghty-Rathert said. "That is a ridiculous thing to say, but I wish I would lose hope in that I wonder why I wear my heart on my sleeve, I wonder why I continually believe that somehow the injustice will become obvious to others and they will care to the extent that I care and that my students care. So, I don't lose hope because they're so entirely deserving, and the other thing is you you don't go into this kind of work with an expectation of a certain timeline.”

Mizanskey said he thinks his representation from Attorney Dan Viets and advocacy from his son, Chris Mizanskey, made the difference in his case. They eventually got the attention of legislators, who presented 128 signatures from Missouri Representatives and Senators and nearly 400,000 online signatures to call for Mizanskey’ release. State Rep. Shamed Dogan, R-St. Louis, led the charge.

“I wish more was done to reduce the prison population of nonviolent offenses and those who have already served lengthy sentences,” Dogan said. “I’m hoping Gov. Nixon will act on this more in his last few months in office. Jeff Mizanskey is the only person who’s been let out of prison. I find it hard to believe that there’s only one. It’s a missed opportunity if a month goes by and after eight years of research, the governor’s office can’t find one more or a handful more and save taxpayers money.”

The other two men who were in prison at the time of their commutations are still there. Richard Clay and Kimber Edwards were spared death in exchange for a sentence of life in prison.

Former Gov. Bob Holden weighs in

Former Gov. Bob Holden said when cases came to him, he didn’t take anything at face value and was “very cautious.” He dealt with the special circumstance that people told him his predecessor, former Gov. Mel Carnahan, had promised clemency to people before he died in a plane crash.

He said of several thousand applications, roughly a hundred got to his desk. Holden said two attorneys helped him decide who would be granted clemency. One was a former prosecutor, and the other was a former civil rights lawyer.

Holden said criteria for clemency included the facts of the case, if the person in question had completed any programs while in prison, was a “model citizen” and showed that he or she “understand their actions and have changed their lives.”

“If there’s no other recourse except for clemency, then that’s something that should be looked at,” Holden said. “But again, very carefully, and make sure you investigate all of the particulars of the case before you decide to give clemency, because you want to support the laws that the people of the state have passed.”

Holden said he steered away from those who had problems in prison on an ongoing basis. He said he paid particular attention to women convicted of violence against their significant others, who had previously abused the women. He is now an advocate for the Community Coalition for Clemency, a group that aims to get more women granted clemency. Holden said he aimed to right some wrongs through clemency. Recipients included individuals in and out of prison.

“I looked at how they got there,” Holden said. “Especially in the case of so many women with spousal abuse or male abuse. Some of the facts in these cases were horrifying. You wonder how they were able to keep control of themselves as long as they did before they acted out.” 

Going forward

Many advocates said the system itself needs reform. Geraghty-Rathert said much of the problem lies in an overburdened public defenders division. Many people advocate for themselves and do not have lawyers to help them.

“The system is just not set up to to make sure that justice is achieved for every single person, especially low income clients, as all of mine were represented by public defenders,” she said. “Public defenders are often really great, really noble lawyers, but they can only do so much and, in Missouri, they're incredibly overburdened. So, we have to find ways to reform the criminal justice system. To prevent people like my clients from slipping through the cracks.”

Reform in Geraghty-Rathert’s eyes would include more funding to public defenders and for those attorneys to fight for clemency. In addition, she wished more training was in place to for officers to consider what people may do if someone was coerced by violence. She said her clients’ behaviors were affected by abusive partners or parents.

Holden sees a solution in more mental health services.

“I think we’re putting too many people in prison,” Holden said. “I think we need to invest more into mental health services and social services. Look to make sure in fact that a crime was committed.”

Mizanskey said the governor’s record of clearing convictions sends a message.

“So, all of these people were able to change and no one else in prison can?” Mizanskey said. “That doesn’t sound right to me. I think there are a lot of people in prison who have changed already that deserve a clemency, and they have not been able to get at it.”

Holste said he thinks it’s likely that Nixon isn’t done granting clemency.

It's not a power to be taken lightly by any governor,” he said. “And certainly this governor takes this power very seriously and has issued more pardons than any governor has in the past 30 years. But again, it's something that he will continue to look at pardon applications until his last day in office.”

On Dec. 9, the governor pardoned 15 Missourians. Holste did not confirm or deny the possibility of additional acts of clemency before Governor-Elect Eric Greitens takes office in January. Greitens’ transition team did not return multiple requests for comment.

(Amber Raub, Kaishuo Zhao, Jacob Cavaiani and Clare Roth contributed research assistance for this story.)

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